“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

“I just wanted someone with ‘M.D.’ after their name to say, ‘This doesn’t reflect well on you.’” Laurion says. “I wanted someone to say he should tone it down and be more personable.” The dozen letters, he says, were to account for any overlapping bureaucracy — though he admits even his own lawyer questioned the avalanche of paperwork.

For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was “a real tool.”

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

“I got a cold call from an online reputation site,” he recalls. “They said, ‘Boy, you’re all over the internet. You want some help?’” One of the physician’s three daughters was handed a printout of an online post in school and ridiculed. She came home crying. “The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible,” he says. “But the 7,000 patients I’ve seen since practicing in Duluth that have little or no feelings are invisible.” Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.

“When he sued me, he opened Pandora’s box,” says Laurion, who denies submitting any posts beyond the initial two. “Whether all of it was proportionate, I don’t know. My intent all along was simply to have someone he respected say to him, ‘When a patient complains, it behooves us to conduct ourselves more circumspectly.’ That was my goal.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

Nearly $70,000 in legal fees later, McKee would agree. He argued his case in front of the Minnesota Supreme Court, which ultimately concluded Laurion’s comments were opinions. And because the court could not rule on the meaning of “tool,” it became impossible to determine whether that was libelous.

“Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false,” read the ruling, which was excruciating in its examination of a schoolyard insult and found in favor of Laurion.

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Are you familiar with a case in Minnesota where a doctor sued a patient’s son for defamation over a negative review he posted? Dr. David McKee’s defamation lawsuit, a 4-year legal battle ended up in the Minnesota Supreme Court. The story recently came up again because BuzzFeed posted an article entitled “Insult And Injury: How Doctors Are Losing The War Against Trolls,” discussing how doctors are having trouble defending themselves against negative reviews.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

McKee was rated for several years as a top provider in Duluth Superior Magazine, but “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

I tweeted a link to that article, and Dennis K. Laurion, whose father was the patient in the Minnesota, case wrote to me. He says no one ever asks him about his side of the story. He’s agreed to let me publish his comments:

As one of the “trolls” detailed in the article, I have no issue with the accuracy of the text—at least as it pertains to me—but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee [the doctor in the case] and Laurion agree on substance…”

From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents.

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001, and repeated here. It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements…yet very few [cases] go all the way to trial and verdict.”

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income—the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my Rate-Your-Doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings—only the news coverage.

It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what, if any, impact it had on them: insensitive doctor or overly-sensitive consumer?

Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

Correspondence of Skeptical Scalpel and Dennis K. Laurion:

[ Skeptical Scalpel ] I very much appreciate your email and the clarification of your situation. I hope you realize that I personally took no side in the dispute you had with Dr. McKee. While spending nearly 24 years as a surgical chairman, I learned that there are always two sides to every story.

[ Laurion ] Thanks, Doctor, for the courtesy of your reply. I do, in fact, realize that you just tweeted the existence of the article.

[ Skeptical Scalpel ] I agree that most of the stories about your case tended to sympathize with the doctor and that his defamation suit brought far more attention to him and his behavior than if he had simply let it go. I have some questions. Is the litigation completely over?

[ Laurion ] Yes. For a while, the plaintiff threatened, mostly in settlement demands, to sue me for 500+ remarks made on Reddit.com. His “proof” was that most of the remarks came from Duluth, and I live in Duluth. (He also lives and works in Duluth.) He threatened to subpoena IP numbers and sue every poster, presumably all my relatives and friends, if I didn’t settle. I hadn’t posted to Reddit, I don’t know anybody who did, and nobody ever asked my ISP for my IP number or browsing history. The statute of limitations has now passed.

[ Skeptical Scalpel ] If so, did you win the case?

[ Laurion ] I won dismissal with prejudice from the Minnesota Supreme Court; he won the right to make me spend $56K I didn’t have. Minnesota allows “hip pocket lawsuits.” The plaintiff served me but didn’t file in court. He almost immediately asked my insurance company for a settlement, apology, and confidentiality agreement. This lawsuit was apparently supposed to last 3 weeks and never be filed in court; however, my insurance company doesn’t offer me defamation coverage, and, rather than reply only to the plaintiff, I filed my reply through the court, putting the suit into public record and the attention of newspapers.

[ Skeptical Scalpel ] Do you have any recourse as far as say, counter-suing Dr. McKee?

[ Laurion ] No. In Minnesota, each party is responsible for their own legal fees. Dr. McKee had to reimburse me about $2000 of filing fees and printing costs. I’d have contemplated a suit for abuse of process, but the Appellate Court’s decision not to dismiss tended to dilute my complaint.

[ Skeptical Scalpel ] Are you familiar with strategic lawsuit against public participation(SLAPP) lawsuits? If I recall correctly, your case took place in Minnesota which has an anti-SLAPP law.

[ Laurion ] I wanted my lawyer to file a SLAPP motion, but Minnesota SLAPP law only applies to actions that are wholly or in part government petitions. The plaintiff’s lawyer only charged me for my internet rating site reviews and my letter to the hospital. The complaint avoided any mention of my letter to the Medicare Ombudsman, the County Health Department, or the Minnesota Board of Medical Review; however, my comments to those sources were quoted in briefs and newspaper comments.

[ Skeptical Scalpel ] May I ask how you discovered that I had tweeted a link to the BuzzFeed article?

[ Laurion ] I searched the opening sentence of the article. The search revealed blogs that copied the article, but it also reviewed Facebook postings and tweets.

[ Skeptical Scalpel ] Finally, do you have any interest in my publishing your email to me on my blog? I think it would be of value for people to hear your side of the story.

[ Laurion ] Yes, I appreciate your offer. You may also quote my answers to your questions, if you wish.

Skeptical Scalpel is a retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and critical care and has re-certified in both several times. He blogs at SkepticalScalpel.blogspot.com and tweets as @SkepticScalpel. His blog averages 1400 page views per day, and he has over 9100 followers on Twitter.

In Minnesota, a man used various doctor-review websites to complain about the physician who treated his father. In his suit, the doctor stated that these claims were defamatory, including a statement where the reviewer calls the doctor a “real tool.” The doctor did not win the case because the Minnesota Supreme Court determined that calling someone a “tool” was an expression of opinion and not a statement of fact. ( David McKee MD V. Dennis K. Laurion )

With the recent $1.845 million verdict in Jesse Ventura’s defamation case, it is important for employees to understand the contours of defamation law in the workplace. Employees should know both what to avoid doing and what rights they have if false statements are made about them.

What should be avoided? The simple answer: avoid making false statements about others. To prevail on a defamation claim in Minnesota, a plaintiff must prove that the alleged defamatory statement (1) was communicated to someone other than the plaintiff, (2) was false, and (3) tended to harm the plaintiff’s reputation and lower [the plaintiff] in the estimation of the community. Bahr v. Boise Cascade Corp. (Minn. 2009). On the other hand, “true statements, however disparaging, are not actionable.” Furthermore, minor factual inaccuracies do not make statements defamatory, as long as the statements were essentially true in substance. David McKee MD v. Dennis Laurion (Minn. 2013).

The widow of Chris Kyle, author of “American Sniper” and subject of Clint Eastwood’s latest film of the same name, is appealing former Navy SEAL and Minnesota Gov. of Minnesota Jesse Ventura’s successful defamation award against Kyle’s estate. Her brief to the United States Court of Appeals for the Eighth Circuit cites David McKee MD V. Dennis Laurion as a precedent reference.

In July, Ventura was awarded $1.845 million in an 8-to-2 decision in his favor for claims made by Kyle in American Sniper Ventura says were fabricated and damaging to Ventura’s career and reputation.

In 2010, Dennis Laurion brought his father to [ St. Luke’s ] hospital following a stroke. He found the bedside manner of the treating neurologist, David McKee, rude. After his father was discharged, Laurion posted several negative online comments about his interaction with McKee. In response to the posts, McKee took an unusual step. He sued Laurion for defamation. After four years of litigation, however, the doctor’s lawsuit was dismissed. He had lost.

There are rare times when an online review is so damaging that a doctor must file a defamation lawsuit, such as when the review accuses the doctor of criminal behavior or serious malpractice. The reputational harm of that type of review is simply too great to ignore.

For most other negative reviews, however, your best bet is to take a deep breath and ignore it. The risks of filing a lawsuit are too high.

[ A ] risk of filing a lawsuit is the appearance that you are bullying a patient and the related risk that your complaint will bring more attention to the negative review than simply leaving it alone.

This is sometimes known as the “Streisand effect.” In 2003, Barbara Streisand sued a photographer for $50 million for taking aerial pictures of her home in California. She claimed the photographs violated her privacy. Her lawsuit, however, drew massive media attention and, according to some reports, over 400,000 people ultimately viewed the pictures of her home online.

The public may view a lawsuit by a doctor as an effort to bully a patient into removing a bad review. Public criticism may be harsh, even if the review contains demonstrable untruths. For example, in the McKee v. Laurion case discussed earlier, the story of physician McKee’s lawsuit was picked up by a local newspaper and then was posted on the popular website Reddit. According to McKee, he received dozens of negative reviews on Rate MDs, including one that called him the “d*ckface doctor of Duluth.” Plus there was extensive media coverage of the case — much of which was sympathetic to the patient.

Five Key Social Media Questions All Health Care Employers Should Consider:

Question #5: How Can We Protect The Online Image Of Our Organization?

Sten Hoidal, Fredrikson & Byron, P. A.

We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a person’s experience with a product or service. Healthcare consumers frequently use these reviews to evaluate which hospital or clinic to use and which provider to see. Job applicants also use their sites in evaluating employment opportunities. Many times the online review process will actually help, not harm, health care employers. At other times, unfortunately, health care employers will be faced with negative online reviews.

For example, in McKee vs. Laurion, Dr. McKee sued Laurion (the son of one of his patients) for his online posts on a “rate your doctor” site. Following several years of court action, the Minnesota Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit altogether and Dr. McKee gained nothing from bringing the legal action.

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varying results across jurisdictions nationwide. Before considering such a step, providers and their legal counsel should carefully consider cases in their state, such as the ones presented below, to determine if the facts of their case would support a cause of action recognized in the jurisdiction and would be likely to succeed.

Even if legal counsel believes that a potential suit has merit, physicians should consult with risk managers and other advisers regarding the public relations implications of such an effort. Providers may ultimately decide that a lawsuit would draw more attention to a negative review or video posted online than it would garner on its own and could perpetuate a reputation of the provider as “the doctor who sued her patient.” Possibly worse, the plaintiff may respond with a malpractice lawsuit.

Minnesota: Online Posts Not Defamatory

In a case decided in early 2013, the Minnesota Supreme Court declined to compel a patient’s son [ Dennis Laurion ] to remove online posts he had made criticizing a neurologist. The case arose from [ David McKee ] the neurologist’s examination of a patient in a hospital’s intensive care unit. Prior to the examination, the neurologist had never been involved in the patient’s care and had never met him.

After the exam, during which the patient’s family felt the neurologist’s behavior was “rude and insensitive,” the patient’s son posted on online physician ratings websites that the neurologist was “a real tool” who made insensitive comments about his father’s prognosis and was unsympathetic to concerns about his hospital gown being closed when asking him to get out of bed.

The neurologist sued the patient, claiming that 11 of the statements were defamatory. A trial court dismissed the claims, and the state supreme court upheld the dismissal, noting that many of the alleged statements were truthful and that the remaining statements were pure opinion and could not be considered defamatory under state law.

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minnesota, neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

Both McKee and Dennis Laurion agree on substance, if not necessarily intent: The doctor entered the room and expressed that he was initially puzzled the elder Laurion had been moved from intensive care. Usually, McKee said, there are only two ways out of the ICU, and he offered this was the better option. McKee intended for the comment to be lighthearted; the Laurions found it crass.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

“I just wanted someone with ‘M.D.’ after their name to say, ‘This doesn’t reflect well on you.’” Laurion says. “I wanted someone to say he should tone it down and be more personable.” The dozen letters, he says, were to account for any overlapping bureaucracy — though he admits even his own lawyer questioned the avalanche of paperwork. For good measure, he also posted reviews on rating sites including Vitals.com and Insiderpages.com. In addition to critiquing his bedside manner, Laurion quoted a nurse he ran into who once knew McKee. The doctor, she allegedly said, was “a real tool.”

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The Duluth News Tribune article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

“I got a cold call from an online reputation site,” he recalls. “They said, ‘Boy, you’re all over the internet. You want some help?’” One of the physician’s three daughters was handed a printout of an online post in school and ridiculed. She came home crying.

“The internet creates a scenario where people with most emotional energy behind their opinions will become the most visible,” he says. “But the 7,000 patients I’ve seen since practicing in Duluth that have little or no feelings are invisible.” Convinced Laurion was behind the multitude of postings (though they coincided with the Reddit discussion, a large number allegedly came from Duluth, where Laurion resided), McKee renewed his litigation and his lawyer hired a private investigator to find the nurse Laurion claimed to have run into. She was never located.

“When he sued me, he opened Pandora’s box,” says Laurion, who denies submitting any posts beyond the initial two. “Whether all of it was proportionate, I don’t know. My intent all along was simply to have someone he respected say to him, ‘When a patient complains, it behooves us to conduct ourselves more circumspectly.’ That was my goal.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

McKee vs Laurion is a defamation case that lasted a total of four years and took place in the state of Minnesota. The case began when Dr. David McKee filed a lawsuit against the defendant, Dennis Laurion, claiming that Laurion posted defamatory statements online that damaged McKee’s reputation and interfered with his business.

Since Mr. Laurion felt that his statements were true he asked the district court to dismiss the lawsuit. The district court agreed with the defendant, stating “six allegedly defamatory statements posted online by the appellant criticizing the respondent doctor for what the appellant perceived as rude and insensitive behavior are not actionable because either there is no genuine issue of material fact as to the statements’ falsity or the statements do not convey a defamatory meaning as a matter of law,” and ruled to toss the case out.

McKee, however, appealed the decision and won in the appellate court. The appellate court made the argument that the statements in question could indeed cause damage to the doctor’s reputation, especially if any of the statements were found to be fabricated by the defendant.

Due to the appellate court’s decision, the Supreme Court of Minnesota decided to hear the case. In the end the Supreme Court sided with the district court and overturned the appellate court’s decision.

Recent Trends In Defamation Law: From The Straigthforward Action In Ventura V. Kyle To Unmasking An Anonymous Poster In The “Fuboy ” Case

David P. Twomey

Truth is a complete defense to a defamation action and “true statements of fact however disparaging are not actionable. The First Amendment also broadly protects pure opinion from defamation claims. In McKee v. Laurion Dr. McKee brought a defamation action against the son of a patient who posted statements regarding Dr. McKee on various “rate-your-doctor” websites after his father’s release from the hospital. The court reviewed the statements in question and found that the statements were substantially true, pointing out that the common law approach to falsity in the context of libel “overlooks minor inaccuracies. ” Regarding a final statement published as follows: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee’s is a real tool!!’” The parties dispute whether this statement is protected opinion. The court stated that referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. The court concluded that it is an opinion amounting to “mere vituperation and abuse” or rhetorical hyperbole” that cannot be the basis for a defamation action. Accordingly, truth is an absolute defense, and pure opinion cannot be basis for a defamation lawsuit.

Chapman University, Orange California, offers a summary of David McKee MD V. Dennis K. Laurion in its course Business 105.

Course Hero,a platform of more than 10 million students and educators across the globe who are empowered to share and access educational resources every day, offers a study guide to Business 105. Course Hero helps empower students and educators to succeed! Course Hero is a passionate community of students and educators who share their course-specific knowledge and educational resources to help others learn and study.

Physicians Can Help Shape Their Presence On Influential Online Rating Sites

Joey Berlin, Associate Editor, Texas Medicine

Volume 113, Number 3, Pages 33-40

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Establishing, Managing, and Protecting Your Online Reputation highlights the case of Minnesota neurologist David McKee, MD, who sued over negative online comments the son of a stroke patient posted in 2009. Dr. McKee sued for defamation, claiming the poster also made false statements to the American Academy of Neurology and the American Neurological Association. A four-year legal battle concluded with the Minnesota Supreme Court dismissing the case in January 2013.

The book said Dr. McKee’s case created a media firestorm and became an example of the Streisand effect, a term for an attempt to suppress a piece of online information that actually results in the information garnering more publicity. The term derives from a Barbra Streisand lawsuit against an organization that published an aerial photo of the singer’s house.

“Whenever McKee’s name is put into a search engine, the publicity generated by his lawsuit will be featured prominently in the search results,” Dr. Pho and Ms. Gay wrote. “By suing the patient, not only is the outcome of the suit in doubt, but he actually made the situation much worse. No matter what kind of merit you think a case might have, doctors who sue patients for online ratings are going to lose in the more influential court of public opinion. Better that doctors take some slanderous lumps online, and instead, encourage more of their patients to rate them.”